Discovery is a process by which two parties in a legal proceeding exchange information, exhibits and documents according to specific rules of procedure. In a typical legal proceeding, a party (“requesting party”) may, pursuant to procedural rules, send a document request to another party (“responding party”) to compel the responding party to produce documents that contain any of the many categories of subject matters. The responding party reviews potential documents, identifies documents containing any of the enumerated categories of subject matters, and produces them for the requesting party. Historically, the responding party reviewed paper documents, copied responsive documents, and produced them for the requesting party. Information technologies have caused companies to have a large volume of electronic documents, and thus it is necessary to use an Internet review platform for the review of documents. In a typical document review, the representing law firm or the client retains a data company for providing data hosting service and retains contract attorneys (“the reviewers”) from employment agency to review documents on terminal computers (“client computers”). The reviewers can access the server of the review platform and download documents one by one for review.
A. Needs for Conducting Document Review
The need for document review may arise from all kinds of causes such as civil violations, securities law violations, patent infringement, copyright infringement, product injuries, merger acquisition, violation of regulatory laws, statutory violations (e.g., Foreign Corrupt Practice Act and Export Control Statute), and crimes. Document review may also be conducted for internal due diligence. Different legal procedures and substantive laws require the responding party to produce different types of documents. As a result, there is no universal procedure for processing documents. Each review project requires unique tasks for the project manager and the reviewers. Each type of cases may require a unique discovery process.
The documents sought depend upon the nature of claims and thus vary considerably. When a corporation acquires another corporation, the acquisition transaction may be subject to the approval by the Department of Justice. This type of review is very unique in that the government only looks for possible antitrust violations. In nearly all cases, the government focuses on products defined by three relevancies: relevant product, relevant market, and relevant time. The reviewers need to pay attention to any documents, which could raise antitrust concerns. In class actions, discovery is the most contentious. The disputed issues may revolve around looting, fraud, and failure to disclose important information. In patent infringement cases, the issues may be patent validity, patent misuse, and inequitable conduct. This kind of cases requires the reviewers to identify infringing products and services.
In the cases arising from government investigation, the government may issue subpoena to compel a corporation or person to produce certain documents. Document requests vary from case to case although documents sought in same type of cases often include certain similar types. Some of the examples may arise from the law regulating communications, stockbrokers, and investment advisers. Some investigation may be focused on specific issues. Thus, document production will be revolving around those issues. Some may require broader investigation. For example, if an investigation is focused on the accuracy of a submitted declaration, the focus of discovery will be on the declaration. If an investigation is directed at a specific kind of advertisements such as using fax, web mail, or bulk email, the discovery would focus on those materials. Some investigation cases arise under the Foreign Corrupt Practices Act, which prohibits corporations from giving anything of value to the officials of foreign governments. When a company is under investigation for violating this federal statute, the review is focused on how money or gifts are used.
Internal due diligence review may be conducted to find internal misconduct such as looting, embezzlement, and steeling. For example, when a bank discovers that someone may have stolen or embezzled money, the bank may conduct an internal investigation. While such discovery does not always work, it is a proper measure for finding an answer. Due diligence review is conducted for various other purposes. When a company is to acquire a business or a substantial amount of assets, the acquiring company may have to conduct necessary investigation of the acquired company so that it can make an informed decision. The investigation is conducted to ascertain potential liabilities, outstanding debts, assets, revenues, cash flow, and intellectual properties.
Objectives of document production vary, depending upon the nature of cases and other factors. Regardless of the complexity of legal issues, the final objective for each document production project is to produce enough documents to meet the requirements of the document request or subpoena and identify the documents that support the claims or defenses. However, due to the dynamics of litigation, the parties may consider additional objectives, which include producing a document database that is capable of scaling up and down and which will be useful in a later stage of litigation. Yes, another common objective is to produce documents at the lowest costs possible.
B. Complex and Unique Document Compositions
Client companies make different products and sell different services. Thus their documents contain completely different substances. Despite their differences, their documents contain (1) information on a large number of projects, services, and processes, (2) strange codes or causal names of products, services, and materials, (3) a large number of players such as employees, customers, attorneys and consultants, and other parties, (4) technical subjects of varying complexity, (5) jargon, abbreviations, and acronyms, (6) assumptions only understood by those who were involved in the underlying transaction, (7) incomplete person names, place names, and discussion topics that can be understood only by those in the discussion group, (8) protected compressed and zipped files, (9) trade secrets protected by passwords, and (10) substance in one or more foreign languages. Due to any and all of the reasons, document review is not an easy task.
Corporate documents contain a large number of duplicates. A large number of duplicate documents arise from document distribution practice, archiving, file backups, drive backup, media backup, and server backup. A document may be distributed to several, tens, and hundreds of employees. The some documents may be amended and again sent to a large number of employees. Each of the documents in an individual employee possession may be again backed up in many ways. Certain documents may have thousands of copies while others may have only tens to hundreds of copies. The large number of documents is primarily responsible for the high review cost.
Due to the large number of software applications for creating documents and complex file histories, some documents cannot be properly processed for review. Documents cannot be opened due to (1) lack of a supporting application, (2) association with a wrong application, (3) missing necessary components, (4) being linked to an unavailable file, (5) incorrect encode in the texts of foreign languages, (6) corrupted file structure, (7) infection by virus, and (8) lost information or damaged file structure. It is easy to name potential causes, but often difficult to ascertain whether a document has a real technical problem. When a great number of documents cannot be opened, it is a disaster. The only possible solution is to find original documents. Documents incorrectly marked as having a technical problem may be routed back to reviewers for another round of review. Two or three rounds of attempts can incur a great deal of costs.
Encoding problems in foreign language documents add another layer of complication. Many large corporations are doing business worldwide. Their corporate documents are written in different languages, depending upon the geographic region where the documents are created and what are the intended readers. Some documents are written in foreign languages, others contain foreign languages between lines, and yet others contain English translation. Some documents may be written in more than one language with internal cross-references. It would be very difficult to have those documents reviewed. Reviewers go through several rounds of reviews. For the reason obvious, this can kind of documents cannot be properly reviewed in several rounds, one for each of the languages. If such documents are important, they are translated to English.
Password protection of documents adds further complications. Passwords protected documents often appear in the document pools of software companies and technology companies. This class of documents can significantly reduce review speed. It is often difficult or even impossible to find right passwords. In many times, the reviewers treat such documents as trash or technical documents. The parties in civil litigation may reach an agreement on how to treat those documents. Now companies use zip files to send documents by email. A zip file may contain tens to hundreds of files. Some zip files contain database dump files, large number of forms and templates, all files for a complete project, and routine spreadsheets. An attempt to deal with the password problem can consume a great deal of time. An operation from file selection, downloading, to unzipping the file can waste as much as 10 minutes per document. If a reviewer is still unable to open a document, the reviewer waits for help or repeatedly tries the same operations. The time wasted from this is much difficult to assess. Documents routed to a wrong destination will be routed back and forth without final resolution.
C. Litigation Dynamics
Document production is further complicated by unpredictable but routine changes inherently in litigation. All current review models lack the ability to deal with changes. For a small case handled by a single lawyer, any change to any aspect of a review production is already a headache problem. In a massive document review project, any change means a huge costs and a great deal of delay.
Constant and routine changes in litigation are in a head-on clash with the constraints of the review model. In many times, even if the client can pay for a huge cost, it is simply has no time to make required changes. Litigation in the adversary system by nature is a contesting game, and the need for making changes is to increase the chance of win and reduce the chance of loss. However, everything else in the document production model is against any change. One biggest impeding factor is the large number of documents. Naturally, all law firms have the needs to change review instructions concerning review standards, request definitions (specification definitions), coding rules, and methods of handling of documents. In reality, discovery is a trail and error process that is characterized by changes, adjustments, fixes, quality checks, corrective reviews, and special reviews. In situations where any change cannot be applied to portion of the documents due to practical difficulty, the review team has to review all documents. This requires a great deal of review time. In other situations, any change may affect a sub set of documents in the pool.
One of the many complicating factors is the number of players. For any review, the players may include client employees, litigation attorneys, project managers, document processors, staffing agency, document reviewers, and technical consultants. One single misunderstanding by any of the player may result in an error that might require a massive corrective review. Another complicating factor is the huge amount of case information. When a change is proposed, it is impossible to foresee how the proposed change will affect documents through its direct effects or its unforeseen interactions with one or more case facts. Finally, many changes, even though they are purely litigation decisions, cannot be successfully implemented without the support of review platforms. When a proposed task is to find and review a set of priority documents in order to meet a deadline, one question is whether the review platform can competently identify the set of documents. By the extension of the same reasoning, one can imagine that platform search capability and algorithm types, file formats, file types, file conditions, files processing histories, and the way of organizing information in the files affect the chance of success. Even the work habits of the reviewers may be a differential factor. Some reviewers may be able to successfully make a change while others may give up. Although experience may be the most valuable thing to predict the chance of success, no one can guarantee any type of outcome in a system with too many variables. A very sound change plan may be easily defeated by a surprising factor. If all factors can be considered independently, the problem may be not frightening. In many times, a change may be impeded by a battery of main factors such as review software characters, internet connection characters, review computer characters, server characters, file characters, file processing histories, reviewer's working habits, and the size of affected documents. Each main factor may comprise tens to hundreds of sub-level factors and they may be intertwined with each other. This explains how a law firm can actually spend tens of millions of review fees on a typical review project.
D. Current Document Review Models
In a classic document review model, documents are collected to form a review pool, and they are reviewed to identify those documents, which contain substances falling in one or more categories of the requests. The definitions of categories are provided in the document request. One of the document requests in a patent infringement case may be “any and all documents that discuss, mention, and relate to the patent in suit.” A typical document request may contain several to hundred individual requests. The reviewers review all potential documents and find relevant documents. Responsive documents then are further reviewed to determine if they are privileged and thus withheld from being produced.
The review platform has a review tag database table for storing coding decisions such as responsive or non-responsive, privilege or not privileged. If a reviewer determines that a document is responsive, the reviewer checks the responsive tag for this document and checks all other applicable tags for the document. In addition, the reviewers may determine if a document is hot (Hot documents are those that are very important to the case) and code it accordingly. All responsive and non-privileged documents are produced, optionally, with a production log identifying each of the produced documents. The production log may contain only limited information.
Information technologies have caused companies and businesses to produce extremely large document pools, which can comprise more than a million documents. Thus, reviewing and producing documents by the conventional manual method are no longer practicable. It is necessary to use an Internet review platform for the review of documents. Thus, an e-discovery industry has emerged as a big industry where a large number of companies are involved. The main services in the industry include data collection, data processing, document hosting, software development, employee staffing, training and consulting, and document review.
Since the deployment of Concordance, more than two dozens review systems have entered into the market. Each platform comprises a server, a server application and plural terminal computers connected to the server. Well-known review platforms include Concordance, Applied Discovery, Iconect, Stratify, Ringtail, Introspect, Attenex, Summation, and Case Central. Each review platform comprises at least one server for loading and processing data and for sending documents through the Internet to a plurality of client computers for review. Regardless of the discovery platforms, the basic concept is the same. First, the documents from one or more custodians of the responding party are collected and stored on a server. Hard copies of documents are scanned and saved as suitable image files. Electronic documents are converted into image files such as Tiff, PDF, and PNG. Certain electronic documents may be converted into text files by optical character recognizing software, while their native formats and text formats are also available for download during review. All documents are loaded onto the server. They deliver electronic documents to review terminals in text, html, TIFF, PDF, or native files.
The files are indexed according to certain scheme, which is mainly for the convenience of assigning documents to a plurality of reviewers and of tracking review statuses. Individual document ranges (which may be referred to as folders) may be created by conducting search using certain search keys or by using other assignment methods. On some platforms, documents may be displayed as files in one parent folder on the browser. Documents can be assigned to reviewers by virtual folders, document numbers, or assignment ranges. On other platforms, documents may be assigned to plural reviewers by assigning start and end bates numbers. They may be presented to the reviewers in the order consistent with their consecutive bates numbers.
Plural reviewers review documents from client computers connected to the server. Usually, each of the viewers logs in a personal review account, and opens the assigned folder or document range to review the documents. If the platform allows plural reviewers to review documents by ranges, each of the reviewers goes to the start document number of his assigned document range. As shown in FIG. 1, the user interface of a typical review platform has at least two panes: a document pane 120 for viewing the document and a coding pane 100 for marking tags for the document. The coding pane is also known as “tagging tree.” It generally also has a document list pane 110 for showing all documents in the list and many other utility panes.
In reviewing documents, the reviewer opens a document on the document pane 120, reads the document, and conducts required analysis. Upon finishing reading the document, the reviewer clicks all applicable check boxes on the coding pane 100 according to review instructions. Each of the check boxes, also known as “tags,” is associated with one of the review categories or definitions. The tagging tree on the tagging pane may contain the following checking boxes and definitions: [ ] None-responsive, [ ] Responsive, [ ] Hot document, and [ ] Privileged document. Some of the tags may have many associated sub tags. The numbers and natures of definitions used in each case are unique and may be completely different from what are used in other cases. Thus, the server allows the project manager to set up and modify the tagging tree for each project. The reviewer may write a note for a document in an annotation field in the coding pane. After the reviewer finishes the document, the reviewer clicks a submission button or advance button 130. This action causes the server to write the values of the selected tags into the coding database for the document, and causes the server to load next document. The reviewer then repeats the same process in reviewing the next document. The top area of the document pane may be placed with review tools for changing view size and document orientation, conducting text searches, and highlighting or redacting text.
A second review may be conducted for the responsive documents to insure that they are properly coded. Responsive documents are also reviewed for significance in the first review. A separate review of significant documents may be conducted in contentious cases. Non-responsive documents are not always reviewed in the quality control phase. Privileged documents are subject to further reviews by a privilege team for the final determination of their privilege statuses. When a document is determined as privileged, it is removed from the responsive pool and placed in the privileged document pool. A log is created, showing document creator, addressee, other recipients, creation date, privilege basis, and brief description of its subject. Privilege review may be conducted twice.
A typical production project may comprise two responsiveness reviews, one or two privilege reviews, one optional hot document review, creation of privilege log, and creation of a hot document log. The total number of reviews can be more than those. The reviewers may conduct corrective review for documents that contain detected errors and inconsistencies or contain potentially useful substance. Other tasks include proofreading a document log, proofreading a privilege log, removing documents from a privilege log, reviewing documents produced by adverse parties, searching specific information in the documents produced by the adverse party, tabulating information from the documents produced by the adverse party, searching public records, constructing database using events, acts, and conducts, constructing attorney name table, analyzing their substances. This list is not exhaustive, and the nature of tasks can only be defined by the need of litigation.
In addition to the broad spectrum of tasks mentioned above, the unpredictable nature of litigation makes the review project even more difficult. A change in the document request, a negotiated settlement on discovery disputes, a change in client's objective, filing of new claims and new defenses, change of parties in the case, court's ruling on motion, and settlement of claims can change review plan, scopes of specifications, total custodian number, coding tree structures, coding rules, and the method for handling documents.
Review of corporate documents is a difficult task because the subject matters in corporate documents may be about anything under the Sun. They may be written at any technical levels. Documents may contain a large number of special acronyms, terms and expressions, unfamiliar product numbers, short product names, people's names, unfamiliar transactions, incomplete place names, and unstated or implied assumptions. Accordingly, documents are not readily understandable to anyone who is outside of the discussion cycle. Reviewers constantly struggle to understand the terms. If the task of e-discovery is to review old documents for a corporation whose staff has been changed completely, the current staff can do little to help reviewers.
E. Reasons for High Review Costs
The review time is the major cost of e-discovery. The costs for reviewing and processing documents is anywhere from $1 to $15. If a client has one million documents to be reviewed and processed, the total production cost would be from $1 to $15 millions. For a large review project involving one hundred reviewers who work 10 hours a day at the billing rate of $150 per hour, the total fee would be $150,000 a day. If each of the documents needs 2 minutes on average, billed at $150 per hour, the total costs for this component alone could be $5 million. A document review for merger may cost several millions and a due diligence investigation can cost tens of millions of dollars. Certain time-intensive tasks could cost considerable more. Those tasks include writing summaries for documents, translating foreign language documents, and creating a production log, and producing a privilege log and a hot document log. A considerable amount of time is consumed in identifying review problems, conducting corrective reviews, and conducting additional review required by litigation needs.
The total costs for a review project is the sum of the costs for reviewing each document. The cost for reviewing each document directly depends upon the time used for each document. The time for reviewing each document comprises (1) the time for loading the document, (2) the time for reading the document, and (3) time for analyzing the document, and (4) the time for coding the document and saving document. If the time for loading document is 1 second per document on average, the total cost could be 150*(1*1,000,000)/3600=$41,700 per million, assuming that reviewers are billed at the rate of $150 per hour. Thus, when a law firm uses a network speed at 1 minute per document, the bottom line price would be $3.3 million. This time component depends upon the design features of the review systems, maturity of review software, the availability of the supporting applications, and sustained bandwidth for the internet connection. Feeding illegible documents to a review platform alone can double or triple review cost. The second time component has a lot to do with the experience of reviewers and familiarity with the case. A reviewer with considerable experience in the field and knows the language context need less time to read the document. In contrast, a new reviewer needs more time to read the document. The third time component depends upon reviewer experience, the amount of case information, the nature of legal matter, and the complexity of legal issues. The last time component depends upon system design of tagging pane, coding logic, the client computer, and network speed. Impossible, confusing, and conflicting coding logic will cause reviewers to struggle. Other factors, which can make this problem worse, include slow network speed, limited bandwidth, and the layout and design of various web panes.
Documents may be reviewed for different purposes in one to many rounds. The total cost is approximately proportional to the rounds of reviews. Anything that affects individual's review time and the number of reviews affects the total cost. A great number of parameters affect the total cost of a given project. Any problem can substantially increase final production costs. For example, a bad review platform may lack the tools for performing tasks productively; inexperienced reviewers need more time to review documents; poor network condition takes longer time to download documents; a bad review plan may require more review passes to perform same tasks; and bad management may be responsible for more corrective reviews, and sudden changes in litigation needs may require corrective review.
Another reason for high costs is the time needed for conducting corrective review and fixes. Many large production projects have more than a million of documents. While the review platform allows project mangers to track document review statuses, but it is not always possible in all the situations. Documents are reviewed and processed, various logs are constructed, and corrective reviews are conducted for various purposes. A quality control review at any stage may reveal review problems such as errors and omissions, but it is not easy to correct all problems. The mistakes and inaccuracies may find their ways to the document coding database, production log, privilege pool, privilege log, and hot document log. Certain mistakes such as omitted documents can be fixed. Other problems such as using incorrect definitions, using wrong tagging conventions, omission of required tasks, and use of a wrong analysis method are more difficult to correct. After a project has started for weeks and months, correction of any problems is never easy. The nature of this task can be as tedious as picking up a few sands from a bowl of cooked rice. The costs can be very high if the only solution is to conduct a corrective review for all involved documents. Many times, corrective review is conduced for all affected work products, all logs, and other memorandum. Any small mistake is equivalent to waste of hundreds of thousands of dollars. Document production is an extremely time-consuming, extremely difficult, and extremely expensive task.
The large amount of case information, commingled foreign languages, a large number of file types and prevalent technical problems are responsible for unmanageable discovery costs. Many additional factors such as poor review plans, reviewers skills and experiences, confusing review instructions, missed applications in review computers, poor definitions in the coding pane, bad structures of coding tree, and unavailable passwords are among other factors contributing to the high costs.
Great effort has been made in the industry to reduce discovery costs. Review costs and review accuracy are intertwined. Highest accuracy can be achieved by spending unlimited time to review and analyze documents. Lowest costs can be achieved by letting a computer code documents. A reasonable objective is to achieve good accuracy at reasonable costs in reasonable time. One way to reduce review costs is to reduce the number of documents in the review pool. A well-designed search method may identify the most-probably-relevant documents to be included in the review pool. Each of the documents is then subject to several rounds of reviews by the reviewers. Some computer search methods can be used to reduce the review pool by as much as 80% of documents. The deduced size of the document pool directly reduces the final costs of production.
To further reduce the costs, some platform vendors have developed computer algorithms for automatically coding documents. A small number of sample documents are taken and reviewed to identify suitable search keys and search key matrix which are used to search documents. Based upon whether certain search keys and key combinations are found in documents, the server codes the documents accordingly. Such computer algorithms may save a great deal of review costs but cannot be used to code documents in contentious cases. Other algorithms may imitate the coding done by human reviewers for similar or related documents.
F. Review Experience and Learning Process
In a typical review, reviewers start learning basic case information. The learning process for experienced reviewers is different from that for inexperienced reviewers. All reviewers have to learn basic case facts, review instructions, and review software. Experienced reviewers can go through this process faster because they do not need to learn everything. They only need to learn case facts and the unique or different aspects of review procedure, background law, substantive instructions, review platform, tags structure, and coding conventions. In a second request review, experienced reviewers might have known most of the two dozens requests. They only need to learn those unique and distinctive requests, and they are familiar with most of concepts such as market shares, sale prices, costs of saving, cost and benefit analysis, and antitrust sensitive issues. They also know the basics for conducting responsiveness and privilege review, and thus do not need to spend time to learn everything and develop new skills for applying requests to documents. They may know short cuts for conducting relevancy analysis and privilege analysis. It is far less likely for them to make fatal errors under reasonable review speeds. In comparison, new reviewers have too many new things to learn. New things include case facts, review procedure, background law, review instructions, review platform features, tags structures, coding conventions, analytical methods, and handling platform problems. They need to develop basic skills for conducting legal analysis, applying document definitions to documents, and performing complex analysis. They may make a coding error as a result of using a wrong approach in conducting legal analysis or failing to realize important facts.
All reviewers cannot reach their full potential in all reviews. One reason is that they cannot master everything. Their workflow may be interrupted because they have to address less frequently encountered facts, terms, expressions, things, people, and places. If a company has used two thousand attorneys, a reviewer can remember one hundred names, which appear frequently. The reviewer is unable to remember the remaining one thousand nine hundred attorney names. Whenever the reviewer encounters those unfamiliar attorney names, the reviewer needs to check them against the names list. In addition, they have to sporadically deal with issues such as illegible documents, handwritten notes, foreign languages, compressed files, missing passwords, large spreadsheets, database files, and troublesome web pages. This explains why their performance curves level off.
Experienced reviewers have their own peculiar “liabilities.” Due to insufficient review guidelines, experienced reviewers may import the meanings of special terms such as responsive, significance, privilege, and technical issues into the current project. Importation of different interpretation rules can directly compromise review objective. Tagging logic and coding conventions are different from sites to sites, and written review manuals seldom provide any details to alert the reviewers to their uniqueness features. Review manuals may contain many interpreting gaps. Experienced reviewers may fill the gaps with what they know. They might port into the current case prior procedures, substantive definitions, and interpretation rules, coding rules, and tag configurations. As a result, they might code documents contrary to site requirements.
On review projects run by new associates, quality control data often reveals that experienced reviewers perform worse than new reviewers. There are several reasons for this noted “poor performance.”
The first reason is their differences in interpretation philosophy. Experienced reviewers tend to read requests more narrowly and pay more attention to substance. Thus, they exclude more documents in a document production for an opposing party. New reviewers and new associates tend to read definitions more broadly and pay more attention to the requests' literal meanings than its substance. Experienced reviewers, especially those with best litigation background, may exclude documents that merely mention buzzwords without real substances. They might exclude hundreds of types of documents. By reading requests literally, the requests can squarely read on those documents. However, the documents are not the kinds of documents the request drafters would need. If one of the documents were coded as privileged, the substance in the document would be insufficient to fill a defensible log entry. By using this literal relevancy standard, the manager would regard many coding decisions as errors.
Over-inclusion of non-responsive documents is a prevalent problem under the current review models. The Department of Justice returned documents on the ground that the production contained too many irrelevant documents. An incidence like this clearly suggests that relevancy should be determined based upon document substance at least in some cases. By using different interpreting philosophies, new reviewers can achieve better consistency but experienced reviewers may achieve low consistencies. This also explains why high school students can achieve high consistencies when they are asked to code documents according to a list of definitions in a few simple steps. High school students can perform better in performing simple three-step manual tasks. When quality control staff also takes the literal approach, experienced reviewers will be the minority.
The second reason for devaluing review experience is that the current review model is unable to utilize the reviewer's experience and knowledge. For a corporate client conducting business in multiple industries, its manufacturing products touch many fields, and so do its technologies. Therefore, corporate documents may include executive's elegant speeches, counsel's sophisticated legal analysis, sales staff's routine reports, all kinds of complex secured transaction files, personal informal email, various legal instruments, hard-to-understand financial records, R&D experiment reports, and quality control test data. As diverse as corporate documents are the backgrounds of document reviewers. The reviewers may have majored in literature, history, business administration, secured transactions, accounting, life sciences, physical sciences, chemical engineering, mechanical engineering, software and information technology, electrical engineering, and medicines. By using the current assignment methods, documents are processed by custodians. Same or similar documents are assigned to many reviewers randomly, just like lottery balls to be blown out of a drawing vent to land in review folders or ranges. Most documents that they review are not relevant to their experience and knowledge. In addition, they review documents out of context and thus cannot understand special, implied, omitted, and misspelled terms in abundance. Naturally, every reviewer codes documents by best guess. What they are actually doing is to classify documents based upon what they can understand from the documents. In conducting this kind of cursory review, experience may be a waste.
G. Review Performance Requirements
All cases can be classified into three types on the basis of their requirements for review accuracy: (1) low or no requirement, (2) moderate requirement, (3) very high requirement. In certain matters, document productions may be a formality matter. In some merger cases where the final combined market share is still way below 50%, a document review may be a matter of process unless there are real antitrust issues. If the documents do not contain other risky subjects, high school students and even computer algorithms could do the job. A majority of cases do require reasonable accuracy. In those cases, final disposition depends upon their documentary evidence. The parties win with evidence but lose for evidence. When both sides do not have solid evidence to back up their claims and defenses, they go by the usual route: to settle their cases. The final settlement price most probably depends upon the relative strengths of documentary evidence. The third class of cases requires very high review accuracy. In this class of cases, the stake may be millions to billions dollars of punitive damages, triple civil damages, twenty years jail time for the executives, and even company's right to exist. Those cases include securities class action, product liability action, high-profile patent infringement action, and violation of sensitive statutes such as Foreign Corruption Practice and Export Control Law. The method of present invention is primarily intended for the last two classes of cases.
Some review sites reveal the need to train reviewers to improve review speed and review quality. On some review sites, helpful information is posted on a blackboard or clipboard for sharing. This effort is intended to identify coding problems and prevent coding errors. Discussion meetings may be conducted on a daily or weekly basis. This method is, however, ineffective and inconvenient. Oral communication is ineffective to discuss subtle coding issues, and cannot be used to share complex facts between reviewers. Some review sites provide a questions-and-answers forum, where the reviewers provide questions and project managers provide answers one or several days later. Sharing information by using Windows share drive has also been used as early as the birth of the window operation system itself. However, this method presents several problems. First, such arrangement does not allow plural reviewers to write information to the same source and Windows operating system may lock up the file when one reviewer opens the file. To avoid this problem, each of the reviewers is allocated a time slot to enter questions. It can waste a great deal of administrative time. Second, such a method cannot be standardized to implement many functions. Different cases may require totally different ways of organizing and sharing case information. Thus, this method can be implemented only for questions and answers. Finally, there is no suitable way to ensure that all information posted on the Excel is accurate and reliable. Posting a piece of wrong information for sharing may cause other reviewers to make a wrong coding decision. As a result, only project managers and litigation attorneys can answer such questions. The law firms do not want to use such method to share elementary facts that may control coding decisions in many related documents. The question-and-answer method could be conducted by email, email attachments, web pages, or web page attachments. However, the method is seldom used for similar reasons. It cannot be used to share elementary facts in real time, and there is no proper way to ensure data accuracy.
The whole review process of any review is a learning process for learning a mass amount of case information. Each case presents an overwhelming number of elementary facts and undefined or unfamiliar terms. This learning process will not end until the review project is finished.
H. Prior Art Search and Highlight Methods
Most of the document review platforms used a method for highlighting potentially relevant key words by the server. A data processing vendor requests a list of key words from litigation attorneys, and uses the key words as search keys. Each time, when a document is culled for review, the server uses the keys to conduct a search in the document. If it finds a search key, the server adds a marking or required code in the document, it continues to search the document, finds the same word in another location, and marks it up. It then goes through the outer loop and searches the document using a second key, finds all found words, and marks them up. It goes through all keys in turn and marks all found words. The process of adding highlight code may be done in the initial loading or even long before the review. It can be done in any time.
The code added in the document is responsible for the displayed color of the found word. After the document is rendered, the reviewer may see one or more keys highlighted, and if any key is found at multiple locations, all of the found words are highlighted up. If search keys are “good,” “bad,” and “average” and if the document contains “good” and “bad,” those two words are marked in designated colors.
The program for highlighting found words may go through the document in a single trip, and for each word, the program compares the word against each of the search keys, and marks each found word. There are all kinds of known algorithms and methods for searching using many search keys, marking found words in one or more colors, constructing a web page, and delivering the web page to the review computer. This search algorithms are considered matured art and have been used to search text files, TIFF files, PDF files, etc.
The same highlighting method has been used to highlight privilege terms that generally include attorney names and a large number of privileged terms. The current method has several issues. The search terms are formulated in advance. It is often the case that a large number of non-relevant terms are highlighted while the important terms are not lit up. Second, it is difficult to update the keys. It often takes days to collect information before an update to the search keys can be done. Due to the roles of expendable and over-inclusive search keys, trusted staff generally selects and formulates search keys. Selecting improper search keys would make this feature useless. Finally, this highlighting feature does not provide meanings of highlighted words. Instead, the reviewers are provided with binders that may contain the information and are expected to find the meanings there.
All review platforms also provide one web-page search tool that allows the reviewer to enter one single string to search the current document. When it finds the term, it highlights it. The reviewer can move the highlight color to next hit by clicking a button. This function is similar to the “Find” function in a word processor.